EXHIBIT 1.1
Zions
Bancorporation
Medium-Term Notes, Series
A
Distribution
Agreement
March 31, 2008
Zions Direct, Inc.
One South Main Street
17
th
Floor
Salt Lake City, Utah 84111
Ladies and Gentlemen:
Zions Bancorporation, a Utah
corporation (the “ Company ”), proposes to issue
from time to time certain Medium-Term Notes, Series A (the “
Securities ”) (in an indeterminate amount that will
not exceed a maximum aggregate principal amount of $500,000,000
outstanding at any given time, unless such limitation is
subsequently modified by the Company’s board of directors)
and agrees with you (the “ Agent ”) as set forth
in this Distribution Agreement (the “ Agreement
”). Each of the terms “the Agents”, “such
Agent”, “any Agent”, “an Agent”,
“each Agent”, “the Purchasing Agent” and
“the Selling Agent”, when used in this Agreement or in
any Terms Agreement (as defined below) or in the Annexes hereto,
shall mean Zions Direct, Inc., except at any time when more Agents
are acting as such hereunder, as contemplated in Section 11
hereof.
The Company acknowledges and agrees
that Zions Direct, Inc. may use the Prospectus (as defined below)
in connection with offers and sales of the Securities as
contemplated in the Prospectus under the caption
“Supplemental Plan of Distribution—Market Making
Resales by Affiliates” (“ Secondary Market
Transactions ”). The Company further acknowledges and
agrees that Zions Direct, Inc. is under no obligation to effect any
Secondary Market Transactions and, if it does so, it may
discontinue effecting such transactions at any time without
providing any notice to the Company. The term “Agent”,
whenever used in this Agreement, shall include Zions Direct, Inc.
whether acting in its capacity as an Agent or acting in connection
with a Secondary Market Transaction, except as may be specifically
provided otherwise herein.
Subject to the terms and conditions
stated herein and to the reservation by the Company of the right to
issue Securities directly on its own behalf or through one or more
underwriters, the Company hereby (i) appoints each Agent as an
agent of the Company for the purpose of soliciting and receiving
offers to purchase Securities from the Company pursuant to
Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to issue
Securities directly to any Agent as principal, it will enter into a
separate agreement (each such agreement, a “ Terms
Agreement ”), substantially in the form of Annex I hereto
or in such other form as may be agreed by the parties to that
particular agreement, relating to such issue in accordance with
Section 2(b) hereof. This Agreement shall not be construed to
create either an obligation on the part of the Company to issue any
Securities or an obligation of any of the Agents to purchase
Securities as principal.
The Securities will be issued under
the indenture, dated September 10, 2002 (the “
Indenture ”), between the Company and The Bank of New
York Trust Company, N.A., as successor to J.P. Morgan Trust
Company, National Association, as trustee (the “
Trustee ”), as amended or supplemented from time to
time. The Securities shall have the maturity ranges, interest
rates, if any, redemption provisions and other terms set forth in
the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and
the terms and rights thereof established, from time to time by the
Company in accordance with the Indenture.
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1. The Company represents and
warrants to, and agrees with, each Agent that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “ Act
”), on Form S-3 (File No. 333-132868) in respect of the
Securities has been filed by the Company with the Securities and
Exchange Commission (the “ Commission ”) not
earlier than three years prior to the date hereof; such
registration statement, and any post-effective amendment thereto,
became effective on filing; no stop order suspending the
effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the
Commission, and no notice of objection of the Commission to the use
of such form of registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act has been
received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “ Base Prospectus
”; any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter
called a “ Preliminary Prospectus ”; the various
parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus
supplement relating to the Securities that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to be
part of such registration statement, each as amended at the time
such part of the registration statement became effective, are
hereinafter collectively called the “ Registration
Statement ”; the Base Prospectus (including the
prospectus supplement dated March 6, 2008, the prospectus
supplement dated March 31, 2008 and, if applicable, any other
prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 4(b) hereof is hereinafter called the “
Prospectus ”; any reference herein to the Base
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such prospectus; any supplement to the
Prospectus that sets forth only the terms of a particular issue of
the Securities and is filed in accordance with Section 4(a)
hereof is hereinafter called a “ Pricing Supplement
”; any reference to any amendment or supplement to the Base
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Securities filed with the Commission pursuant to Rule 424(b) under
the Act and any documents filed under the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”), and
incorporated therein, in each case, after the date of the Base
Prospectus, such Preliminary Prospectus, or the Prospectus, as the
case may be; and any reference herein to the “Prospectus as
amended or supplemented”, other than in Section 1(c)(i)
hereof, shall be deemed to refer to and include the Prospectus as
amended or supplemented (including by the applicable Pricing
Supplement and any other prospectus supplement specifically
referred to in such Pricing Supplement) in relation to the
Securities to be issued pursuant to this Agreement, in the form
filed or transmitted for filing with the Commission pursuant to
Rule 424(b) under the Act and in accordance with Section 4(a)
hereof, including any documents incorporated by reference therein
as of the date of such filing);
(b) No order preventing or
suspending the use of the Prospectus, any Preliminary Prospectus or
any “issuer free writing prospectus” as defined in Rule
433 under the Act relating to the Securities (an “ Issuer
Free Writing Prospectus ”) has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the
“ Trust Indenture Act ”), and the rules and
regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however , that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Agent
expressly for use therein;
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(c) (i) With respect to any issue of
Securities to be issued pursuant to a Terms Agreement, the “
Applicable Time ” will be such time on the date of
such Terms Agreement as is specified therein as the Applicable
Time, and the “ Pricing Disclosure Package ”
will be the Prospectus as amended or supplemented at the Applicable
Time together with (A) the information referenced in Schedule
II(b) to such Terms Agreement and (B) such other documents, if
any, as may be listed in Schedule II(a) to such Terms Agreement,
taken together; (ii) with respect to each such issue of
Securities, the Pricing Disclosure Package, as of the Applicable
Time, will not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they are made, not misleading; and (iii) with respect to each
such issue of Securities, each Issuer Free Writing Prospectus
listed in Schedule II(a) to the applicable Terms Agreement, if any,
will not conflict with the information contained in the
Registration Statement, the Prospectus or the Prospectus as amended
or supplemented and, taken together with the Pricing Disclosure
Package as of the Applicable Time, will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading;
provided, however , that the representations and warranties
in clauses (ii) and (iii) of this Section 1(c) shall
not apply to statements or omissions made in any Pricing Disclosure
Package or Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by
any Agent expressly for use therein;
(d) The documents incorporated by
reference in any Pricing Supplement or the Prospectus as amended or
supplemented when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the applicable requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents, when they became effective
or were filed with the Commission, as the case may be, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the applicable
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however , that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Agent
expressly for use therein; and the financial statements of the
Company and its consolidated subsidiaries incorporated by reference
in the Registration Statement, any Pricing Supplement and the
Prospectus as amended or supplemented, together with the related
schedules and notes, present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries
at the dates indicated and the results of operations and cash flows
for the periods shown in such financial statements and, except as
otherwise disclosed in the Registration Statement, any Pricing
Supplement and the Prospectus as amended or supplemented, such
financial statements have been prepared in conformity with
generally accepted accounting principles (“ GAAP
”) in the United States applied on a consistent
basis;
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(e) The Registration Statement and
the Prospectus conform, and any further amendments or supplements
to the Registration Statement or the Prospectus will conform, in
all material respects, to the requirements of the Act and the Trust
Indenture Act, as applicable, and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however , that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Agent expressly for use
therein;
(f) Neither the Company nor any of
its subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented; and, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus as amended or supplemented, there has not been any
change in the capital stock (other than (i) repurchases of
common stock of the Company in an aggregate amount that is less
than 2% of the number of outstanding shares of common stock on the
date hereof and (ii) issuances of or other transfers of
capital stock in the ordinary course of business pursuant to the
Company’s employee benefit plans or awards issued thereunder)
or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries,
otherwise than as disclosed, set forth or contemplated in the
Prospectus as amended or supplemented;
(g) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus
as amended or supplemented;
(h) The Company has an authorized
capitalization as set forth in the Prospectus as amended or
supplemented, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(i) The form of Securities has been
duly and validly authorized and, when the Securities are issued and
delivered against payment therefor pursuant to this Agreement and
any Terms Agreement relating to such Securities, will have been
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, under which
they are to be issued, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the Trust
Indenture Act and, when executed and delivered by the Company and
the Authentication Agent on behalf of the Trustee, will constitute
a valid and legally binding instrument of the Company, enforceable
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; and the Indenture conforms, and the
Securities will conform, to the descriptions thereof set forth in
the Prospectus as amended or supplemented relating to such
Securities;
(j) The issue and sale of the
Securities, the compliance by the Company with all of the
provisions of the Securities, the Indenture, and this Agreement,
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach
or
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violation of any of the terms or
provisions of, or constitute a default under, any indenture, loan
agreement or material mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company
is subject, nor will such action result in any violation of the
provisions of the Restated Articles of Incorporation, as amended,
or Restated Bylaws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Agents;
(k) The statements set forth in the
Prospectus under the captions “Supplemental Description of
Notes” and “Description of Debt Securities We May
Offer”, insofar as they purport to constitute a summary of
the terms of the Securities, and under the captions
“Supplemental Plan of Distribution” and “Plan of
Distribution”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(l) Neither the Company nor any of
its significant subsidiaries (as defined in Rule 1-02 of Regulation
S-X of the Commission) (each, a “ Significant
Subsidiary ”) is in violation of its charter or bylaws or
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, loan agreement or material mortgage, deed of trust or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound;
(m) Other than as set forth in the
Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which would, individually or
in the aggregate, have a material adverse effect on the current or
future consolidated financial position, shareholders’ equity
or results of operations of the Company and its subsidiaries; and,
to the best of the Company’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(n) (i) (A) At the time of
filing of the Registration Statement, (B) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus)
and (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c)
under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company
was a “well-known seasoned issuer” as defined in Rule
405 under the Act; and (ii) at the earliest time after the
filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Securities, the Company was
not an “ineligible issuer” as defined in Rule 405 under
the Act;
(o) The Company is not and, after
giving effect to the offering and sale of the Securities, will not
be an “investment company”, as such term is defined in
the Investment Company Act of 1940, as amended (the “
Investment Company Act ”);
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(p) Ernst & Young LLP, who
have certified certain financial statements of the Company and its
subsidiaries, and have audited the Company’s internal control
over financial reporting and management’s assessment thereof,
are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(q) The Company has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so
as to require such qualification or is subject to no material
liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(r) The Company is a bank holding
company registered under the Bank Holding Company Act of 1956, as
amended, and each of the Company’s banking subsidiaries holds
the requisite authority from its respective banking regulatory
authority to do business as a national banking association under
the laws of the United States or as a state-chartered banking
corporation under the laws of such subsidiary’s jurisdiction
of incorporation, as the case may be;
(s) Each Significant Subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, and all of the issued shares of capital stock of
each such Significant Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and
(except for directors’ qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(t) As of the date hereof, the
Company maintains a system of internal control over
“financial reporting” (as such term is defined in Rule
13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial
officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with GAAP. The Company’s internal control over
financial reporting is effective and the Company is not aware of
any material weaknesses in its internal control over financial
reporting;
(u) Since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus as of the date hereof, there has been no change
in the Company’s internal control over financial reporting
that has materially adversely affected, or is reasonably likely to
materially adversely affect, the Company’s internal control
over financial reporting; and
(v) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e)
under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been
designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities, and such disclosure controls and
procedures are effective.
2. (a) On the basis of the
representations and warranties herein contained, and subject to the
terms and conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company, to use
its reasonable efforts to solicit and receive offers to purchase
the Securities to be issued by the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented
from time to time.
Procedural details relating to the
issue and delivery of Securities, the solicitation of offers to
purchase Securities and the payment in each case therefor shall be
as set forth in the Administrative Procedure attached hereto as
Annex II as it may be amended or supplemented
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from time to time by written
agreement between the Agents and the Company (the “
Administrative Procedure ”). The provisions of the
Administrative Procedure shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms
Agreement. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be
performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee and Zions First National Bank
(the “ Authenticating Agent ”) a copy of the
Administrative Procedure as in effect from time to time.
The Company reserves the right, in
its sole discretion, to suspend solicitation of offers to purchase
Securities from the Company commencing at any time for any period
of time or permanently. The Company shall be entitled to suspend
such solicitation as to any Agent or all of the Agents, as
determined by the Company. Upon receipt of instructions from the
Company, the relevant Agent or Agents shall suspend solicitation of
offers to purchase Securities until such time as the Company has
advised such Agent or Agents that such solicitation may be
resumed.
Unless otherwise agreed pursuant to
a Terms Agreement, the Company agrees to pay each Agent a
commission, at the time of settlement of any issue of a Security by
the Company as a result of a solicitation made by such Agent, in an
amount to be determined by mutual agreement between the Company and
such Agent, which shall not exceed the limits prescribed by the
Financial Industry Regulatory Authority (“ FINRA
”) and which shall otherwise be on terms customary for
transactions of the nature contemplated by any such Terms
Agreement.
(b) Each issue of Securities by the
Company to any Agent as principal shall be made in accordance with
the terms of this Agreement and (unless the Company and such Agent
shall otherwise agree) a Terms Agreement which will provide for the
issue of such Securities by the Company to, and the purchase
thereof by, such Agent; a Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by such
Agent; the commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise,
shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth; each
Terms Agreement shall specify the principal amount of Securities to
be purchased by any Agent pursuant thereto, the purchase price to
be paid to the Company for such Securities, any provisions relating
to rights of, and default by, Agents acting together with such
Agent in the reoffering of the Securities and the time and date and
place of delivery of and payment for such Securities; such Terms
Agreement shall also specify any requirements for opinions of
counsel, accountants’ letters and officers’
certificates pursuant to Section 4 hereof, and such Terms
Agreement may also include such other provisions (including
provisions that modify this Agreement insofar as it sets forth the
agreement between the Company and such Agent) as the Company and
such Agent may agree upon. Unless otherwise agreed between the
Company and the relevant Agents, where more than one Agent has
agreed with the Company to purchase a particular issue of
Securities pursuant to this subsection, the obligations of such
Agents so to purchase such Securities shall be several and not
joint.
For each issue of Securities by the
Company to an Agent as principal that is not made pursuant to a
Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set
forth in the Administrative Procedure. For each such issue of
Securities by the Company to an Agent as principal that is not made
pursuant to a Terms Agreement, the Company agrees to pay such Agent
a commission (or grant an equivalent discount), in an amount to be
determined by mutual agreement between the Company and such Agent,
which shall not exceed the limits prescribed by FINRA, and which
shall otherwise be on terms customary for transactions of the
nature contemplated by any such Terms Agreement.
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Each time and date of delivery of
and payment for Securities to be purchased by an Agent as
principal, whether set forth in a Terms Agreement or in accordance
with the Administrative Procedure, is referred to herein as a
“ Time of Delivery ”.
(c) Nothing in this Agreement shall
be read or deemed to preclude the Company and one or more of the
Agents from modifying or supplementing this Agreement (including
the Administrative Procedure) insofar as it applies to transactions
between them without such modifications or supplemental provisions
being made of general applicability to transactions between the
Company and all of the Agents.
3. The Commencement Date (as defined
below) shall be the day prior to the date on which solicitation of
offers to purchase Securities is commenced or on which any Terms
Agreement is executed or at such other time and date as may be
agreed to by the Agents and the Company (such time and date being
referred to herein as the “ Commencement Date
”).
4. The Company agrees with each
Agent:
(a) (i) to prepare, with respect to
any Securities to be issued by the Company through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to
such Securities in a form previously approved by such Agent and to
file such Pricing Supplement pursuant to Rule 424(b) under the Act
not later than the close of business of the Commission on the fifth
business day after the date on which such Pricing Supplement is
first used or at such earlier time as required under Rule 424(b)
under the Act;
(ii) with respect to any issue of
Securities to be issued pursuant to a Terms Agreement, but only if
requested by the Agents party to such Terms Agreement prior to the
Time of Sale (as defined below), to prepare a final term sheet
relating to such Securities in a form as may reasonably be agreed
to by the Agents party to such Terms Agreement and to file such
final term sheet pursuant to Rule 433(d) under the Act within the
time required by such rule;
(iii) to file promptly all material
required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act;
(iv) to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and so long as the
delivery of a prospectus (or, in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required in connection with the
offering or sale of the Securities (including in any Secondary
Market Transactions during the Secondary Transactions Period (as
defined below)), and during such same period to advise the Agents,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or has
become effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to
Securities not purchased through or by such Agent) has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus in respect of the Securities, of any notice of objection
of the Commission to the use of the form of the Registration
Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act relating to the Securities, of the
suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the form of the
Registration Statement or the Prospectus or for additional
information; and
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(v) in the event of the issuance of
any stop order or of any order preventing or suspending the use of
any such prospectus in respect of the Securities or suspending any
such qualification, to promptly use its reasonable best efforts to
obtain the withdrawal of such order; and in the event of any such
issuance of a notice of objection, promptly to take such reasonable
steps as may be necessary to permit offers and sales of the
Securities by the Agents, which may include, without limitation,
amending the Registration Statement or filing a new registration
statement, at the Company’s expense (references herein to the
Registration Statement shall include any such amendment or new
registration statement);
(b) If required by Rule 430B(h)
under the Act, to prepare a form of prospectus in a form approved
by Zions Direct, Inc. and to file such form of prospectus pursuant
to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no amendment or supplement to the
Registration Statement or the Prospectus (i) prior to the
Commencement Date which shall be disapproved by any Agent promptly
after reasonable notice thereof, (ii) after the date of any
Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery
which shall be disapproved by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable
notice thereof or (iii) during the period beginning on the
Commencement Date and continuing for as long as may be required
under applicable law, in the reasonable judgment of such Agent
after consultation with the Company, in order to offer and sell any
Securities in Secondary Market Transactions as contemplated by the
Prospectus (the “ Secondary Transactions Period
”) which shall be disapproved by such Agent promptly after
reasonable notice thereof;
(c) To make no further amendment or
supplement to such form of prospectus which shall be disapproved by
Zions Direct, Inc. promptly after reasonable notice
thereof;
(d) Promptly from time to time to
take such action as such Agent may reasonably request to qualify
the Securities for offering, issue and sale under the securities
laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution or sale of the Securities
(including in any Secondary Market Transactions during the
Secondary Transactions Period); provided, however , that in
connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(e) (i) if the delivery of a
prospectus or, in lieu thereof, the notice referred to in Rule
173(a) under the Act is required at any time prior to the
expiration of nine months after the time of issue of the applicable
Pricing Supplement in connection with the offering, issue or sale
of the Securities (including Securities purchased by such Agent as
principal and including in any Secondary Market Transactions during
the Secondary Transactions Period, whether before or after such
expiration) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus or, in lieu thereof, the notice referred
to in Rule 173(a) under the Act is delivered, not misleading, or,
if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notif
